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2000 DIGILAW 950 (PAT)

Abdul Manan v. Mosharraf Ali,Md. Ishaque

2000-08-03

A.K.PRASAD, S.N.MISHRA

body2000
Judgment A.K.Prasad, J. 1. These Letters Patent Appeals are from the decision of learned single Judge dated 3rd May 1990 rendered in F.A. No. 132 of 1985(R) along with F.A. No. 133 of 1985(R). The plaintiff Mosharraf Ali [respondent no. 1 in L.P.A. No. 68/90(R)] brought Partition Suit no. 244 of 1982, while plaintiff Md. Isha- que brought Partition Suit no. 244 of 1983 [who is respondent no. 1 in L.P.A. No. 75/90(R)] which were decreed by the Special Sub-Judge, Ranchi for partition of their 1/12th share, each, in the suit property described in Schedule A to the plaint by common judgment dated 28.8.85 and the preliminary decree(s) drawn up thereunder. Being aggrieved by the judgment and decree passed in the partition suits, Abdul Manan @ Abdul Main, a defendant in the suit preferred F.A. Nos. 132 and 133 of 1985(R) which were dismissed by the learned single Judge. Hence, the instant Letters Patent Appeal. 2. The suit property comprises an area of 7 karies in Municipal plot no. 769, one kary of municipal plot no. 765 and 53 karies of Municipal plot no. 770 situated at village Konkarsiram, in Ward no. 5 of Ranchi Municipality, within P.S. Lower Bazar. 3. The facts of the case of the parties are set out in detail in the judgment of the trial court as well as the judgment of the learned single Judge. So it is suffice to state the facts essential for the decision of the instant appeals. 4. Shorn of details, the case of the plaintiffs is that the suit property, fully described in Schedule A to the plaint, belonged to Mostt. Ratni who conveyed it in the year 1939 under a deed of gift to Hazi Latif @ Seikh Bandhan who became its owner and under a registered deed of sale dated 11.8.1975 (Ext. C/2) he transferred his right, title and interest in the schedule A property to defendant nos. 2 to 7. Defendant nos. 2 to 6 are full brothers, whereas defendant no. 7 Md. Rashid is stranger to the family. The plaintiff on representation made by Md. Rashid, defendant no. 7, that there had been a partition interse amongst defendant nos. 2 to 7 transferred his share in suit property described in Schedule B to the plaint under a joint registered deed of sale dated 1.12.1981 (Ext. 1). 7 Md. Rashid is stranger to the family. The plaintiff on representation made by Md. Rashid, defendant no. 7, that there had been a partition interse amongst defendant nos. 2 to 7 transferred his share in suit property described in Schedule B to the plaint under a joint registered deed of sale dated 1.12.1981 (Ext. 1). The plaintiffs brought the suits for partition of their half share, each, in Schedule B property and alternatively for partition of their 1/12 share each in schedule A property. According to them, defendant no. 7, their vendor, had 1/6th share in Schedule A property on the basis of the sale deed dated 11.8.1975 standing in the names of defendant nos. 2 to 7. 5. The main case of defendant no. 2 Abdul Manan (the appellant herein), as made out in his written statement, is as under : The Schedule A property was in fact acquired by him for Seikh Bandhan under registered deed of sale dated 11.8.1975 (Ext. C/2) and he had paid entire consideration amount and defendant nos. 3 to 7, whose names occurred in the sale deed, are his benamidars and that he is the true owner of the suit property. The suit property, in fact, belonged to Aklu Main who had purchased 11 karies in Municipal survey plot no. 765 from Koka Mochi in the name of Mostt. Ratni under a registered sale deed in 1915 and he had also acquired Municipal plot nos. 769 and 770. In fact Seikh Bandhan had no right, title and interest with respect to the suit property. The alleged deed of gift, if any, executed by Mostt. Ratni in favour of Bandhan was a sham transaction. Since Seikh Bandhan represented himself as an absolute owner of the Schedule A property defendant no. 2 appellant had purchased the said property by virtue of registered deed of sale dated 11.8.1975 with defendant nos. 3 -to 7 as name lenders for a consideration of Rs. 20,000/-. Two kathas and eight chatak of Municipal survey plot no. 770 was gifted by Aklu Mian to his grand-son Seikh Sharif under registered deed of gift dated 15.6.1918 and came in possession thereof which was ultimately purchased by defendant no. 2- appellant from Md. Sharif under registered deed of sale dated 17.11.1975 and got his name mutated in the municipality. The plaintiffs were tenants in different portions of plot no. 770. 6. 2- appellant from Md. Sharif under registered deed of sale dated 17.11.1975 and got his name mutated in the municipality. The plaintiffs were tenants in different portions of plot no. 770. 6. The defendant nos. 3 to 6 filed written statement supporting the case of defendant no. 2. 7. At the trial following issues were framed for determination : "1. Is the suit as framed maintainable? 2. Have plaintiffs valid cause of action for the suit? 3. Whether Mosarraf Ali and Md. Ishaque has unity of title and possession with Abdul Mannan, Wali Mohammad, Noor Mohammad, Wasi Mohammad and Sharfuddin over the suit property? 4. Are Mosarraf Ali and Md. Ishaque entitled to a decree for partition as claimed? 5. Whether Abdul Manan alone purchased the suit property from Sk. Bandhan and other urchasers are benamidars? 6. Whether Abdul Mannan acquired title over the suit property by purchase from Sk. Sharif? 7. To what other relief or reliefs plaintiffs are entitled?" 8. Both the parties led evidence, oral and documentary, in support of their respective claims. The trial court tried issue nos. 3 to 6 together and held that although the plaintiffs could not prove that there had been partition amongst defendant nos. 2 to 7 inter se, in respect of the property described in Schedule A to the plaint, but as the defendant nos. 2 to 7 purchased the property jointly from Sk. Bandhan by virtue of the sale deed dated 11.8.1975, the plaintiffs being purchasers from defendant no. 7 under registered sale deed dated 1.12.1981 were entitled to 1/12th share, each, in the property described in Schedule A to the plaint and thus, they are entitled for decree for partition of their shares therein. The trial court further held that suit as framed was maintainable, that the plaintiffs had cause of action in the suit and, ultimately, their suits for partition were decreed. In the First appeals the decree(s) passed by the trial court was confirmed by the learned single Judge. 9. Mr. L.K. Lal, the learned counsel for the appellants has assailed the impunged judgment and raised the following issues : (i) Whether in absence of the production of the original deed of gift allegedly executed by Ratni in favour of Sk. Bandhan valid title to the suit property had pased to Sk. Bandhan? 9. Mr. L.K. Lal, the learned counsel for the appellants has assailed the impunged judgment and raised the following issues : (i) Whether in absence of the production of the original deed of gift allegedly executed by Ratni in favour of Sk. Bandhan valid title to the suit property had pased to Sk. Bandhan? (ii) Whether on the basis of entries in the municipal record in the name of Sk. Bandhan inference could be drawn that he had valid title to the schedule A property? (iii) Whether the two courts erred in holding that suit property acquired by the appellant in the joint names with defendant nos. 3 to 7 was not his exclusive property and that defendant nos. 3 to 7 are not his benamidars? (iv) Whether there was unity of title and possession between the parties with respect to Schedule A property? 10. Mr. N.K. Prasad, learned, Sr. counsel appearing for the plaintiffs, on the other hand, has supported the impugned judgment. 11. It is admitted fact that Hazi Abdul Latif @ Sk. Bandhan transferred his right, title and interest in the schedule A property to appellate Abdul Mannan and defendant nos. 3 to 7, including Abdul Rashid under registered sale deed dated 11.8.1975 (Ext. C/2). It is further admitted that Abdul Rashid is the vendor of the plaintiffs under registered deed of sale dated 1.12.1981 (Ext. 1). Koka Mochi by a registered sale deed dated 1.4.1915 (Ext. C) sold his right and interest in respect of old holding no. 732 in favour of Most. Ratni and in the document on the southern boundary it is mentioned that house of Most. Ratni existed. This shows that old holding no. 732 was acquired by Most. Ratni and she had house on its southern boundary. Registered deed of gift dated 15.6.1918 (Ext. B) was executed by Aklu in favour of Sk. Sharif in respect of holding no. 762. House of Most. Ratni is shown therein on eastern boundary. These two documents reveal that Most. Ratni had a separate house. By registered deed of gift in 1939 Most. Ratni conveyed her right, title and interest in favour of Sk. Bandhan with respect to one katha of Khapraposh house comprised in M.S. Plot no. 770 (within old holding no. 341 which is equivalent to present holding no. 441/A) and also M.S. plot no. Ratni had a separate house. By registered deed of gift in 1939 Most. Ratni conveyed her right, title and interest in favour of Sk. Bandhan with respect to one katha of Khapraposh house comprised in M.S. Plot no. 770 (within old holding no. 341 which is equivalent to present holding no. 441/A) and also M.S. plot no. 769 which is evident from the entry in the register of the Registry Office (Ext. 4). 12. Exts. 2 to 2/d are entires in Demand and Collection Registers of Ranchi Municipality for the year 1940-41, 1952-53, 1962-63, 1971-72 and 1973-74 which show that in the year 1940-41 the name of Most. Ratni was recorded in respect of holding no. 441/A whereafter the name of Sk. Bandhan was mutated in her place and the number of old holding no. 441/A in the year 1952-53 became new holding no. 237 and subsequently its new corresponding no. became 352 in 1962-63 and stood recorded in name of Sk. Bandhan in the municipal record for the years 1962-63, 1971-72 and 1973-74. 13. It is well settled that mutation of property in revenue or municipal records neither creates nor extinguishes title to the property nor it has any presumptive value of title [Ref: (1997) 7 SCC 137 Balwant Singh V/s. Daulat Singh and (1996) 5 SCC 618 Durga Das V/s. Collector and Ors.]. But the fact remains that Ext. 2 to 2/d are relevant for the purpose that the land gifted by Most. Ratni to Sk. Bandhan was acted upon and given effect to. 14. Ext. C/2 is registered sale deed dated 11.8.1975 executed by Hazi Latif @ Sk. Bandhan in favour of Abdul Mannan, the appellant, Wali Mohammad, Noor Mohammad, Wasi Mohammad, Safruddin Mohammad and Md. Rashid in respect of present holding no. 352 (previous holding nos. 441/A and 237) and plot nos. 765, 769 and 770 total 64 karis. Ext. 2/e is the entry in Demand and Collection Register of the Municipality for the year 1975-76 which shows that names of the purchasers in the sale deed dated 11.8.1975 (Ext. C/2) were mutated in place of Sk. Bandhan in respect of holding no. 352, under Mutation Case no. 1951/75/822 (vide endorsement therein Ext. 2/3). D.W. 1 Abdul Mannan (defendant no. 2-appellant) admitted in his cross-examination that he had looked into the old documents of title of Sk. Bandhan and thereafter he had purchased plot nos. C/2) were mutated in place of Sk. Bandhan in respect of holding no. 352, under Mutation Case no. 1951/75/822 (vide endorsement therein Ext. 2/3). D.W. 1 Abdul Mannan (defendant no. 2-appellant) admitted in his cross-examination that he had looked into the old documents of title of Sk. Bandhan and thereafter he had purchased plot nos. 765, 769 and 770, which had been gifted by Ratni to Sk. Bandhan, in his name together with defendant nos. 3 to 7 and on his application the names of all the purchasers described in the sale deed (Ext. C/2) were mutated in the municipal record. He has claimed that he alone had paid the entire consideration amount of Rs. 20,000/- and the other purchasers therein have no right, title and interest in the Schedule A property. D.W. 11 Mohd. Washim, defendant no. 5, has stated that Schedule A property was exclusively purchased by appellant Abdul Mannan, his brother, who had paid the consideration money and that the other co-purchasers have no share but he admits in the cross- examination that neither he was present at the time of the negotiation, nor at the time of the registration of the sale deed (Ext. C/2). He has further stated that during the pendency of the suits he could know about the existence of the sale deed. According to him, the name of his brother Abdul Mannan alone has been mutated in the municipal record. This part of his statement is manifestly incorrect. The reason as to why he has come forward to support the case of the appellant is not far to seek and no credence can be attached to his evidence. 15. It has been urged on behalf of appellant that the sale deed (Ext. C/2) has been produced from the custody of defendant no, 2- appellant and this shows that other co-purchasers named therein are his benamidars. It is suffice to say that when document of sale is in the name of the appellant and other co-purchasers the original document could have remained in possession and custody of one of them and the production of the original sale deed (Ext. C/2) by the appellant would not necessarily lead to the inference that the appellant is the exclusive purchaser of the Schedule A property under the sale deed (Ext. C/2). C/2) by the appellant would not necessarily lead to the inference that the appellant is the exclusive purchaser of the Schedule A property under the sale deed (Ext. C/2). There is the solitary testimony of the appellant (D.W.2) on payment of consideration amount of the sale deed (Ext. C/2) exclusively by him, which is not corroborated by any document or other cogent evidence. As regards, the subsequent purchase of land of 40 karies of plot no. 770 by appellant Abdul Mannan from Sk. Sharif under registered sale deed dated 17.11.1975 (Ext. C/1), it is stated that it has been gifted by Aklu to Sk. Sharif, his grand-son under registered deed of gift dated 15.6.1918 (Ext. B), which relates to holding no. 762. Both the courts have held that there is nothing on record to show that holding no. 762 appertains to plot no. 770. There is no document to show that Schedule A property was ever recorded in the name of Aklu in the municipal record. Thus, the title of Sk. Sharif, the vendor of appellant Abdul Mannan, with respect of plot no. 770 has not been established by the appellant, Abdul Mannan. An Eviction Suit against tenant was brought by defendant no. 2-appellant on the basis of sale deed (Ext. C/2) and not the sale deed dated 17.11.1975 (Ext. C/1) obtained from Sk. Sharif. 16. There is concurrent finding of fact of both the courts that appellant Abdul Mannan purchased the Schedule A property along with others from Sk. Bandhan in 1975 (Ext. C/2) and they came in joint possession thereof, and the subsequent conduct of the appellant Abdul Mannan in getting their names mutated in the municipal record shows that the sale deed (Ext. C/2) was acted upon and given effect to by the appellant Abdul Mannan and other co-purchasers. Further, there is concurrent finding of fact of both the courts that the plea of benami purchase taken by appellant Mannan had not been established on facts. The concurrent findings of the two courts on facts are based on apprisal of evidence and do not suffer from any infirmity, nor such finding of facts can be said to be perverse or palpable unreasonable. 17. The concurrent findings of the two courts on facts are based on apprisal of evidence and do not suffer from any infirmity, nor such finding of facts can be said to be perverse or palpable unreasonable. 17. It is true that learned single Judge has observed in the impugned judgment that the plea of benami was impermissible in law in view of the provisions of Benami Transaction (Prohibition) Act, 1988 (in short the Act) and for this proposition he relied on decision of the Apex Court in Mithilesh Kumari and another V/s. Prem Bihari Kharo ( AIR 1989 SC 1247 ). It is suffice to say that the Division Bench decision of the Apex Court in AIR 1989 SC 1247 that sub-sections (1) and (2) of Section 4 of Benami Transactions (Prohibition) Act, 1988 are retrospective in operation has been over-ruled by a three Judges Bench of the Apex Court reported in AIR 1996 SC 238 (Raj Gopal Reddy V/s. Chandrashekhar). Section 4(1) and 4(2) of the Act became operative with effect from September 5, 1988. Section 4(1) of the Act bars/prohibits the right of a person who claims to be real owner to recover property from others held benami, while Section 4(2) of the Act envisages that no defence based on any right in any property held benami whether against the person in whose name the property is held or against any other person shall be allowed in any suit, claim or action by or on behalf of a person claiming to be the real owner of the property. In Raj Gopal Reddy (supra) it has been laid down that the prohibition under sub-sections (1) and (2) of Section 4 of Act would apply to suits brought on or after 5th September, 1988 and not to the suit brought prior to that date and do not apply to pending proceedings when the sections came into force. The learned single Judge based the view on the interpretation of the legal proposition of the Apex Court as it then existed. The partition suits have been filed before Sections 4(1) and 4(2) of the Act came into force. One may need not further discuss this aspect of the matter. 18. There is a concurrent finding of fact of both the courts that Md. Rashid had 1/6th share in the Schedule A property jointly acquired under registered sale deed dated 17.8.1975 (Ext. The partition suits have been filed before Sections 4(1) and 4(2) of the Act came into force. One may need not further discuss this aspect of the matter. 18. There is a concurrent finding of fact of both the courts that Md. Rashid had 1/6th share in the Schedule A property jointly acquired under registered sale deed dated 17.8.1975 (Ext. C/2) executed by Sk. Bandhan; that there is unity of title and possession of the co-purchasers in respect of the suit property and since defendant no. 7 has transferred his right, title and interest in favour of the plaintiffs, vide registered sale dated 1.12.1981 (Ext. 1), the plaintiffs are entitled to a decree of partition of their 1/12th share each in the Schedule A property. There is no reason to disagree with the concurrent findings on such score of the two courts. 19. In the result, there is no merit in these Letters Patent Appeals and the same are dismissed. No costs. Choudhary S.N.Mishra, J. 20 I agree.